IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,068

EX PARTE RICARDO RACHELL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 928275 IN THE 185^TH DISTRICT COURT

                                            FROM HARRIS COUNTY

           Per curiam.

O P I N I O N

            Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and sentenced to forty years’ imprisonment. The Eleventh Court of Appeals affirmed his conviction. Rachell v. State, No. 11-03-0192-CR (Tex. App.–Eastland, delivered September 30, 2004, pet. ref’d).  

            Applicant contends that he has newly discovered evidence that he is actually innocent of this offense. The trial court has determined that no rational jury would have convicted Applicant in light of the new evidence, which was previously unavailable to Applicant. The evidence, obtained pursuant to post-conviction DNA testing and investigation, indicates that it was another individual, rather than Applicant, who committed this offense. Applicant is entitled to relief. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

            Relief is granted. The judgment in Cause No. 928275 in the 185^th District Court of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County to answer the charge against him.

            Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Parole Division.

Delivered: January 14, 2009

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